Roux v. Commissioner of Immigration at Port of San Francisco

WOLVERTON, District Judge (after stating (he facts as above). Two questions are presented by this record and insisted upon by counsel for petitioner; First, whether petitioner was awarded a full and fair trial before the inspectors, for her first hearing was had before Inspector Watts and her subsequent hearing before Inspector Ainsworth; and, second, whether she was deportable under the act of February 20, 1907, as amended by the act of March 26, 1910, upon the charge preferred against her. [416] Rule 22 of the Department of Commerce and Labor, clauses (b) and (c) of subdivision 4, provides: “(b) During tbe course of tbe bearing tbe alien shall be allowed to inspect the warrant of arrest and all the evidence on which it was issued; and at such stage thereof as the officer before whom the hearing is held shall deem proper, he shall be apprised that he may thereafter be represented by counsel and shall be required then and there to state whether he desires counsel or waives the same, and his reply shall be entered on the record. If counsel be selected, he shall be permitted to be present during the further conduct of the hearing, to inspect and make a copy of the minutes of the hearing, so far as it has proceeded, and to offer evidence to meet any evidence theretofore or thereafter presented by the government. Objections and exceptions of counsel shall not be entered on the record, but may be dealt with in an accompanying brief. “(c) At the close of the hearing the full record shall be forwarded to the Bureau, together with any written statement submitted by counsel and the recommendations of the examining officer and the officer in charge for determination as to whether or not a warrant for deportation shall issue.” Rules of November, 30, 1911. These provisions indicate the solicitude of the Department of Commerce and Labor that the alien shall have a fair and altogether impartial and unbiased hearing, free from restraint or any undue influence in the manner of his defense to any charges made against him upon which he may be deported. Was the petitioner accorded such a hear-^ ing before the inspectors? It is unquestioned that petitioner was duly apprised of her right to be represented by counsel at the. hearing, and to inspect all the evidence adduced against her. She replied that as soon as her friends came she would be able to decide. Later in the day her daughter came, accompanied by Lombard, and they made it their purpose to inquire whether it was necessary that petitioner should procure counsel in her defense. They were told by the inspector that it was not necessary' to get a lawyer; that it was no use; that the case was all right; and that they did not need'a lawyer; to “never mind about a lawyer; there is hardly anything to it. * * * You just come, you and your wife. You don’t need any other witnesses.” This latter to Lombard. Moved by this advice, Lombard advised petitioner that it was not necessary for her to have a lawyer, and none was secured. These witnesses were reputable, namely, the daughter and Lombard, and their testimony is in no way contradicted or discredited. Later two witnesses, Esmiol and Pellan, were produced and their testimony heard. Thus petitioner complied with the suggestion of the inspector to bring two witnesses. Rule 22 but reflects how essential it may be for the accused to have counsel: “He [counsel] shall be permitted to be present during tbe further conduct of the hearing to inspect and make a copy of the minutes of the hearing.” And: “At the close of the- hearing [it is further provided] the full record shall be forwarded to the Bureau, together with ahy written argument submitted by counsel and the recommendations of the examining officer and the officer in charge for determination as to whether or not a warrant for deportation shall issue.” [417] The honorable Secretary of Commerce and Labor is the adjudicating officer who determines upon the record whether deportation shall follow, and the only representation that the accused can have before that officer is through the argument of counsel. If, therefore, she is deprived of counsel in the hearing before the inspector and of the opportunity to be heard before the honorable Secretary of Commerce and Labor, it is manifest that she is not accorded the full and fair trial that the rules of the Department of Commerce and Labor are intended to secure. Low, we are not impressed that there was any intimidation exerted on the part of the inspector to prevent the petitioner from employing counsel, but we do think that he overpersuaded her, and thereby induced and unduly influenced her not to employ counsel, and that by reason thereof she had none. She was led to believe, or at least such is the natural and indubitable inference to be drawn from the language of the inspector, that the case against her was a weak one; he saying: “There is hardly anything to it.” The effect is the same, whether she was overpersuaded from employing counsel or otherwise induced to forego the privilege; she did not employ any. The inspector should have advised her at all times that she was "entitled to counsel, and should have refrained from saying anything that would have a tendency to induce her not to employ one. We conclude, therefore, that the petitioner was not awarded the full and fair trial that the law and rules of the Department of Commerce and Labor accord her. In support of these views, see United States v. Williams (D. C.) 185 Fed 598. This renders it unnecessary to discuss the second point. It follows that the judgment of the District Court should be reversed and the cause remanded, with directions to discharge the petitioner from custody.